Electronic Discovery Law
Recognizing Broader Restrictions on Third-Party Discovery, Court Denies Plaintiff's Fifth Motion to Compel Mirror Image of Computers
Mintel Int’l Group, Ltd. v. Neerghen, 2009 WL 249227 (N.D. Ill. Feb. 3, 2009)
In this case, the plaintiff, Mintel International Group Limited (“Mintel”), alleged that defendant Neerghen violated the Illinois Trade Secrets Act, the Computer Fraud Abuse Act, and various terms of his employment contract when he emailed confidential Mintel documents to his personal account and subsequently accepted employment with Mintel’s competitor, Datamonitor. Throughout the course of litigation, five motions to compel were filed seeking a mirror image of third-party Datamonitor’s computers. All of those motions were denied.
Mintel’s first motion to compel sought access to a mirror image of Datamonitor’s computers based on defendant Neerghen’s alleged spoliation of documents on his laptop. Mintel argued that in light of the spoliation, they were entitled to access to Datamonitor’s computers. That motion was denied.
Approximately two months later, Mintel filed a motion to compel Datamonitor’s compliance with a subpoena, once again seeking a mirror image of its computers. The motion was based on defendant Neerghen’s production of Mintel documents not previously known to be in his possession. Mintel argued that it should not be forced to rely on Neerghen’s assertions that he had not used Mintel’s documents and that a mirror image of his Datamonitor computer and email account was relevant to the veracity of those assertions. The court ruled that “that reason alone was insufficient to warrant the drastic measure of having unfettered access to a competitor’s computers” and the motion was denied. Despite denying the motion, the court fashioned a remedy that would have allowed Mintel to dictate search terms to Datamonitor and required that documents located as a result would be produced. Mintel “chose not to avail itself of the relief granted.” (See, Mintel Int’l Group, Ltd. v. Neerghen, 2008 WL 4936745 (N.D. Ill. Nov. 17, 2008)). Mintel’s third motion was a motion for reconsideration of the ruling on the second motion, which was also denied.
A fourth motion was filed alleging that Datamonitor had a mirror image of its computers in its possession and that it would suffer no prejudice from production of that image to Mintel or from supplying a “Round 1-style report” derived from that image. The motion was denied. The court agreed, however, to extend expert discovery as to USB drives produced by Neerghen “for the purpose of attempting to match USB ports with computer and printer names saved on those USB drives.”
Thereafter, Mintel filed the fifth motion to compel (a motion for reconsideration of the fourth motion) based on newly discovered evidence. Mintel asserted that its expert had discovered that Mintel documents were stored on the USB drives, that fragments of those documents remained, and that one document had been printed on a Datamonitor print server. The expert also “opined” that the USB drives had been overwritten based on a “hex ‘FF’ pattern” displayed in certain unused portions of the drive. No other evidence of wiping was present.
Defendant Neerghen opposed the motion arguing that because Mintel had possession of the USB drives for several months, the evidence was not “new.” Neerghen also argued that the only document printed at Datamonitor was his resignation letter from Mintel and that it was not relevant to the claims at issue. Finally, Neerghen argued that his own expert determined that the USB drives had not been wiped and that the “FF” pattern was likely caused by the manufacturer.
Both parties agreed, however, that the USB drives contained two proprietary Mintel documents as well as fragments of others and that the only document printed at Datamonitor was Neerghen’s letter of resignation.
In its analysis, the court first noted that the only evidence linking defendant’s USB drive to Datamonitor was evidence that defendant’s resignation letter was printed on Datamonitor’s server printer. Thus, the question before the court was “whether the evidence suggested by the Plaintiff, the printing of a resignation letter on a Datamonitor printer, two Mintel documents found on the USB drives and the prospect of the “wiping” of the USB devices are enough to allow the mirror imaging of a third-party’s computer.”
Looking first to the “battle of the experts,” the court indicated that where the only evidence of suspected wiping was the “FF” pattern on the USB drives, and where defendant’s expert provided an alternative explanation for it, one could reasonably conclude that no wiping program was run.
The court then reasoned that the existence of Mintel documents on the USB drives was further evidence against the alleged wiping because they would have been deleted as well, had such a program been utilized.
Finally, after pointing out that restrictions on discovery may be broader where a non-party is the target, the court dismissed as irrelevant the evidence indicating that Neerghen printed his resignation letter from a Datamonitor printer. Rather, the court determined, the suspected wiping was the true basis for Mintel’s request. Accordingly, the court concluded that evidence of wiping alone did not indicated the transfer of Mintel documents to Datamonitor computers and noted the lack of any other evidence indicating such a transfer. In the absence of such evidence, “unfettered access” to Datamonitor’s computers was denied.
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